WJT v Trustees of the Marist Brothers & Trustees of the Roman Catholic Church for the Diocese of Parramatta

[2024] NSWSC 983

Supreme Court

New South Wales

Medium Neutral Citation:

WJT v Trustees of the Marist Brothers & Trustees of the Roman Catholic Church for the Diocese of Parramatta [2024] NSWSC 983

Hearing dates:

9 July 2024

Date of orders:

8 August 2024

Decision date:

08 August 2024

Jurisdiction:

Common Law

Before:

Faulkner J

Decision:

See [73]

Catchwords:

CIVIL PROCEDURE — subpoena to produce documents — where document produced in redacted form without leave — redactions made to prevent the identification and personal information of claimants and potential claimants of historical abuse — dispute regarding terms upon which access is to be granted — Plaintiff granted access on terms.

PROCEDURE — civil proceedings —application for limited suppression order to protect the identity of the Plaintiff granted — detraction from the principle of open justice minimal— suppression order made to prevent prejudice and protect the safety of the Plaintiff.

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW) ss 6, 7, 8, 11, 12

Evidence Act 1995 (NSW) ss 126A, 126B

Uniform Civil Procedure Rules 2005 (NSW) rr 1.9(4A), 33.4(1), 33.8

Cases Cited:

Adoption of AT [2015] NSWSC 1995

John Fairfax Publications Pty Limited v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324

Lewis v Lewis (2021) 105 NSWLR 487; [2021] NSWCA 168

R v BB (No 6) [2021] NSWSC 1518

Storer v New South Wales [2023] NSWSC 1043

Category:

Procedural rulings

Parties:

WJT (Plaintiff)
Trustees of the Marist Brothers (First Defendant)
Trustees of the Roman Catholic Church for the Diocese of Parramatta (Second Defendant)

Representation:

Counsel:
E Anderson (Plaintiff)
N Bentley (Defendants)

Solicitors:
Koffels Solicitors & Barristers (Plaintiff)
Carroll & O’Dea Lawyers (First Defendant)
Makinson d'Apice Lawyers (Second Defendant)

File Number(s):

2022/262159

JUDGMENT

1. A number of applications came before the Court arising from subpoenas which the Plaintiff caused the Court to issue to each of the Defendants in April 2023. The subpoenas were answered in October 2023 when:

1. the First Defendant produced to the Court a bundle of redacted documents (which I will refer to as packet S-7) together with a bundle of the same documents unredacted and marked “privileged” (which I will refer to as packet S-9); and

2. the Second Defendant produced a bundle of redacted documents (which I will refer to as packet S-10).

2. A dispute has arisen about access to the unredacted documents in packet S-9 and about the Second Defendant’s initial failure to produce any unredacted documents. Competing Notices of Motion were filed. Subsequent communications have resolved many issues but there remains a dispute about the terms upon which access is to be granted to the last six documents in unredacted form.

3. This judgment determines the remaining access dispute, together with an application for suppression and non-disclosure orders brought by the Plaintiff.

Background

4. By these proceedings the Plaintiff alleges that he suffered physical and sexual abuse between 1988 and 1993 when he was a student at Parramatta Marist Brothers High School. Three staff members who were then at the school are named as perpetrators. The Defendants are alleged to be legally responsible for the abuse as institutions standing in the place of the unincorporated associations which, it is alleged, negligently failed to prevent the abuse and/or are vicariously liable for the abuse perpetrated by the three staff members. The Defendants have filed Defences in which most allegations are not admitted and some allegations are denied.

5. By virtue of the pleadings, the issues in the case include the Defendants’ knowledge, actual or constructive, of a foreseeable risk posed by the three alleged perpetrators. There are also issues about the roles into which the Defendants placed the alleged perpetrators for the purposes of the case based on vicarious liability.

Subpoenas

6. The particulars of the Plaintiff’s subpoenas are not relevant other than to say that each required production of extensive school records which in the ordinary course would include the names and other details of former students who may have been victims of abuse at Parramatta Marist Brothers High School before 1993. Prior to the subpoenas being answered there was no application to set aside either subpoena. Each Defendant made its respective answer to the subpoenas in October 2023 by producing documents to the Court.

7. As set out above, each Defendant produced a bundle of redacted documents. The solicitors acting for the Defendants have made Affidavits in which they say that the redactions were made to protect the identity and personal information of claimants and potential claimants of historical abuse. I accept that evidence. The fact that some of the redactions conceal the names of the alleged perpetrators and indeed the name of the Plaintiff himself does not demonstrate otherwise. This is especially so in circumstances where the solicitor witnesses were not cross examined. The solicitor for the Second Defendant was originally required for cross-examination but no leave was sought at the hearing.

8. As stated above, the First Defendant also produced to the Court its documents in unredacted form (packet S-9). At the time, this would not have been apparent to the Plaintiff because packet S-9 was marked “privileged”. The Plaintiff’s solicitors would have been aware that packet S-9 had been produced but not that it contained an unredacted version of the same documents as were in packet S-7.

9. General access was granted to packet S-7 and S-10 in October 2023. No order has been made for access to packet S-9.

10. The evidence does not reveal what happened in the next seven months.

11. On 20 May 2024 the solicitors acting for the Plaintiff sent an email to the respective solicitors acting for the Defendants in which they objected to the redactions of the documents in packet S-7 and packet S-10. The Plaintiff demanded the urgent production of the documents without redactions. Further objection to the redactions was communicated in a letter dated 22 May 2024.

12. On 23 May 2024, the solicitors acting for the First Defendant sent a letter to the Plaintiff’s solicitors. The Plaintiff’s solicitors were informed that the First Defendant had already produced the unredacted documents to the Court in packet S-9 and proposed a regime which would permit the Plaintiff and his legal representatives to inspect the unredacted documents. The proposed regime was modelled on orders made by Garling J in Storer v New South Wales [2023] NSWSC 1043. At a high level, I will refer to orders in this form as Storer Orders. The First Defendant proposed that the parties seek by consent the following orders:

“In respect to the subpoena issued by the plaintiff to the Trustees of the Marist Brothers on 21 April 2023:

1. Order that access to the documents produced in response to that subpoena be limited to the solicitors and counsel who are retained to act for each of the plaintiff and first and second defendants.

2. Order that with respect to such assess by solicitors and counsel, that any inspection of the documents in unredacted form be limited to the parties’ instructing solicitor, and counsel. That the parties’ solicitors and counsel will not further use or disclose the identifying details, being names, addresses, telephone number or other details of complainants other than the plaintiff without leave of the Court being first granted.

3. Order that in the event that a party seeks to tender in the proceedings any documents produced in response to the subpoena, then such party will seek an appropriate confidentiality order from the Court at the time such documents are tendered.

4. The Court notes that the orders are not intended to prevent solicitors and counsel from seeking instructions from their clients with respect to the contents of the documents produced in response to the subpoena issued by the plaintiff on the Trustees of the Marist Brothers on 21 April 2023.”

13. On 24 May 2024, the solicitors for the Plaintiff sent two emails to the solicitors acting for the First Defendant in which they disagreed to the proposal to have Storer Orders made.

Notices of Motion

14. On 27 May 2024, the Plaintiff filed a Notice of Motion seeking orders to implement a process by which the Defendants would first identify the basis for the redactions to the documents in packet S-7 and packet S-10, the Plaintiff would then have a chance to agree or otherwise respond, and the Defendants would then file a Notice of Motion seeking leave to redact, failing which the Plaintiff would have access to the documents in unredacted form. This Notice of Motion ultimately led to the listing of these proceedings before me on 9 July 2024. The subsequent exchange of further communications between the parties, sometimes by letter and sometimes through the service of Affidavits, revealed to the Plaintiff the basis for the redactions. As set out in [6] above, the basis for the redactions is to protect the identity and personal information of claimants and potential claimants of historical abuse. The orders sought in the Plaintiff’s Notice of Motion are now otiose. The Plaintiff’s Notice of Motion is to be dismissed.

15. On 28 June 2024 the First Defendant filed its own Notice of Motion seeking Storer Orders in accordance with the proposal that had been made in the letter dated 23 May 2024. On the same day the Second Defendant filed a Notice of Motion which in effect proposed the same orders for the documents produced, or to be produced, by the Second Defendant. The Second Defendant’s Notice of Motion was accompanied by an Affidavit from its solicitor in which production of the unredacted documents was foreshadowed.

16. On 2 July 2024, the solicitors acting for the Plaintiff filed an Affidavit which included a list of eight people who were said to be other victims of one of the alleged perpetrators named in the Plaintiff’s Statement of Claim and for whom the Plaintiff’s solicitors also acted. A name was also given of a ninth person who was said to have consented to the Plaintiff’s solicitors having unredacted information about him. In the Affidavit, the solicitor acting for the Plaintiff argued that any information in the Defendants’ redacted documents about any of these nine people was not confidential vis-à-vis the Plaintiff’s solicitors.

17. Following receipt of those nine names, the Defendants’ respective solicitors reviewed all the redacted documents and reduced the documents which remained confidential to six pages. Apart from those six pages, the parties agree that the Court ought now to make general access orders to the unredacted documents. For the Second Defendant, those documents are in packet S-14.

Six pages of counselling records

18. The six pages have now been conveniently produced in unredacted form in each of packet S-12 and packet S-13.

19. The six pages are described in the Defendants’ Affidavits as “counselling records”. The six pages are in evidence for the hearing of these applications in a form which redacts the names of certain students at Parramatta Marist High School in 1993. There are three pages of what appears to be a daily appointment log of the school counsellor which have 27 line items which are redacted. If unredacted, the line items would presumably reveal the names of 27 students who received counselling at a time relevant to these proceedings. Corresponding to each line item is an unredacted entry evidently made contemporarily by the counsellor, such as “boundary management” and “acting out – substance abuse”. In addition, there are two pages of treatment notes which are arranged under category headings, some of which are descriptive (eg, “[n]eeding therapy once a week”) and some of which are not (eg, “category three”). It may be assumed that unredacted, these two pages will reveal the names of some former students who may or may not be the same as the names in the daily appointment log. There is also a one-page document which is very similar to the daily appointment log.

Access to the counselling records

20. The first submission made by the Defendants (albeit faintly) is that the counselling records contain “protected identity information” as that term is defined in s 126A of the Evidence Act 1995 (NSW). In those circumstances the Court may direct under s 126B(1) that the redacted information not be disclosed. In the face of that objection being taken now, the Court must determine the objection by applying the relevant provisions of the Evidence Act with any necessary modifications as if the objection was an objection to the adducing of evidence (s 131A(1)).

21. Section 126B of the Evidence Act provides as follows:

126B Exclusion of evidence of protected confidences

(1) The court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose—

(a) a protected confidence, or

(b) the contents of a document recording a protected confidence, or

(c) protected identity information.

(2) The court may give such a direction—

(a) on its own initiative, or

(b) on the application of the protected confider or confidant concerned (whether or not either is a party).

(3) The court must give such a direction if it is satisfied that—

(a) it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced, and

(b) the nature and extent of the harm outweighs the desirability of the evidence being given.

(4) Without limiting the matters that the court may take into account for the purposes of this section, it is to take into account the following matters—

(a) the probative value of the evidence in the proceeding,

(b) the importance of the evidence in the proceeding,

(c) the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding,

(d) the availability of any other evidence concerning the matters to which the protected confidence or protected identity information relates,

(e) the likely effect of adducing evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider,

(f) the means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed,

(g) if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the protected confidence or protected identity information is a defendant or the prosecutor,

(h) whether the substance of the protected confidence or the protected identity information has already been disclosed by the protected confider or any other person,

(i) the public interest in preserving the confidentiality of protected confidences,

(j) the public interest in preserving the confidentiality of protected identity information.

(5) The court must state its reasons for giving or refusing to give a direction under this section.

22. In Adoption of AT [2015] NSWSC 1995 at [6], Brereton J distilled the terms of s 126B into the central question of “whether the nature or the extent of the harm that may be caused by disclosure of the protected confidences outweighs the desirability of the evidence being given”. In this case, the objection is being taken at the time when access the documents is being sought for the Plaintiff’s pre-trial preparation. A modification which is necessary for the purposes of s 131A(1) is to consider whether the nature or the extent of the harm that may be caused by disclosure of the protected confidences outweighs the desirability of the Plaintiff being granted access to the counselling records.

23. In answering that question, regard is to be had to any orders which the Court might make by which the nature or the extent of the prospective harm may be contained: s 126B(4)(f).

24. If Storer Orders are made, in the first instance the disclosure of the information in the counselling records will be limited to the Plaintiff and his legal advisers. Without further leave of the Court, they will not be permitted to use or further to disclose the information. Given that these proceedings are being conducted in accordance with the practices and procedures of the Court for historic abuse claims, the terms upon which the Court may grant further leave will ensure that the harm which may be caused by the use or further disclosure will be carefully considered before any such leave is granted.

25. Against this, s 126B(3)(b) requires the Court to weigh the desirability of the material being, relevantly, disclosed to the Plaintiff and his legal advisers. Given the issues in the case, it is highly desirable that the Plaintiff and his legal advisers have unredacted copies of the counselling records. The Defendants do not submit otherwise.

26. In all the circumstances, any harm from disclosures to the Plaintiff does not outweigh the desirability of access. This is not a case where the Court ought to direct that the redacted material not be disclosed under s 126B(1) and I decline to make any such direction.

27. The Defendants further rely upon r 1.9(4A) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) which provides:

If a document is produced, and a person objects to the production of the document on the ground that the document is a privileged document, access to the document must not be granted unless and until the objection is overruled.

28. The Defendants’ privilege objection being overruled, UCPR 1.9(4A) does not preclude an order that the Plaintiff has access to the unredacted counselling records.

Terms upon which access ought be granted

29. The Defendants submit that access to the counselling records should be ordered on terms, namely terms to protect any interests of the former students whose names are about to be revealed to the Plaintiff and his legal advisers. The Defendants seek the terms set out in the following orders:

“2 Pursuant to UCPR rr 33.4(1) and 33.8 and the inherent jurisdiction of the Court, order that:

(a)   access to the [unredacted counselling records] be limited to the solicitors and counsel who are retained to act for each of the parties to the present proceeding.

(b)   with respect to such access by solicitors and counsel, that any inspection of the documents in unredacted form be limited to the parties, instructed solicitor and counsel.

(c)   each party’s solicitors and counsel will not further use or disclose the identifying details, being the names, addresses, telephone number or other confidential details of complainants other than the plaintiff without leave of the Court first being granted.

(d)   in the event a party seeks to tender in the proceedings any [unredacted counselling records], then such party will seek an appropriate confidentiality order from the Court at the time such documents are tendered.”

30. As stated above, the terms are modelled on the terms imposed by Garling J in the Storer case. There is one difference, which is presumably a typographical error, in that the restriction in (c) is limited to the “party’s solicitors and counsel” whereas in the Storer case the restriction was imposed more broadly on “parties, solicitors and counsel”.

31. There is no dispute between the Plaintiff and the Defendants that the terms set out in (a) and (b) are appropriate. I agree. Given the nature of the issues in the case and the nature and content of the counselling records, the solicitors and counsel ought to be permitted to inspect the unredacted documents and that permission ought to be extended to include the Plaintiff.

32. The dispute relates to the term set out in (c). The Defendants submit that granting access subject to that term is appropriate. They submit that the Plaintiff has caused the Court to issue subpoenas which constitute Court orders to the recipient of each subpoena (in this case the Defendants themselves) to produce documents into the possession of the Court. In obedience to the Court’s order, production has now occurred. The question is whether the Court ought to permit the Plaintiff to have access to those documents. Whether or not the Court’s powers under UCPR 33.4(1) and 33.8 run that for, in the Court’s inherent jurisdiction the Court may grant access, and it may grant access on terms. The Defendants submit that the Court ought to impose a term to ensure that any intrusion into the privacy of the former students named in the counselling records is carried out in a reasonable way which has regard to the interests of those former students. The Defendants submit that such a requirement ought to be imposed by the Court in this case because it is warranted by the nature of the Plaintiff’s case and the enquiries which the Plaintiff’s solicitors legitimately may wish to pursue with the former students.

30. The Plaintiff does not consent to the imposition of the term. He submits that he ought not be required to obtain further leave from the Court before he can use the information derived the counselling records. In support of that position, the Plaintiff makes the following points:

1. the need for further leave from the Court will be impracticable because each time the Plaintiff’s legal representatives make a forensic decision about contacting another former student, they will have to come to Court to obtain the necessary leave;

2. the need for further leave will cause delay and expense;

3. in effect, the Court will be required to supervise the preparation of the Plaintiff’s case, which is not desirable either for the Court or for the Plaintiff;

4. applying to the Court for leave may place the Plaintiff at a forensic disadvantage by revealing to the Defendants which former students are being contacted, and when each particular former student is being contacted;

5. if, in order to grant leave, the Court requires information about the questions which the Plaintiff wants to put to the former students, further forensic disadvantage may be suffered by the Plaintiff by revealing such details to the Defendants;

6. the forensic disadvantage may extend to the conduct of the trial if the Plaintiff chooses not to call a former student who the Defendants know the Plaintiff has contacted; and

7. any former student named in the counselling records can be protected by a suppression and/or non-publication order.

34. Both parties addressed these issues by describing the approach by the Plaintiff’s solicitors to former students as making “cold calls”. Whilst there may be other uses to which the Plaintiff may legitimately put information derived from the counselling notes, cold calling became the focus of the submissions to the Court.

35. The Plaintiff submits that there is only a remote risk of harm being caused by students receiving cold calls about childhood sexual abuse. In support of that submission, the Plaintiff adduced evidence from his solicitor. Over four years, his solicitor has acted for victims of child sexual abuse in other cases. In his Affidavit affirmed on 2 July 2024, the solicitor says:

“22. I have called dozens, or indeed hundreds, of witnesses in historical child sexual abuse matters over the last 4 years who were themselves victims of child abuse. The majority of such witnesses have been prepared to assist Koffels' clients. Many or most have reflected that they wish to assist other victims to bring to justice defendants whom they perceive as not having ever been brought to justice. In that sense the "cold call" is a positive experience for such witnesses. I have identified in 1 witness a sense that his mental state was seriously adversely affected by discussing his own abuse. In none of the other witnesses I have spoken to could I detect by their words or delivery thereof a sense that the "cold call" I made to them caused anything approaching harm.

23. I say that if cold calling witnesses in abuse claims is an occasion for potential harm, based on my experience that potential is remote. I have spoken to Natalia Lapthorne, special counsel, of Koffels who informs me that she has also called dozens or hundreds of witnesses in abuse claims, and her experience is that nobody she has spoken to could be said to have been harmed by her cold calls, and in fact the opposite is true (i.e. that it has assisted many). I say that if "cold calling" witnesses in abuse claims is an occasion for potential harm, based on my colleague's experience that potential is remote.”

36. I did not find this evidence reassuring.

37. Even on an interlocutory application, the solicitor’s evidence can rise no higher than his own perception (and that of his colleague) of the responses of victims of child sexual abuse to receiving a cold call about child sexual abuse. The solicitor has identified one person whose mental state was, as perceived by the solicitor, “seriously adversely affected by discussing his own abuse”. Otherwise, the solicitor appears to perceive such cold calls as harmless, or even “a positive experience” for the victim of child sexual abuse.

38. It may be accepted that the solicitor has accurately conveyed his perceptions and those of his colleague, but I am concerned that the reality may be more nuanced. Some of the nuance is made apparent from evidence given by the same solicitor in an Affidavit which he affirmed on 3 July 2024. That Affidavit was read in support of an application by the Plaintiff to have orders made to suppress the Plaintiff’s name under the Court Suppression and Non-publication Orders Act 2010 (NSW). To explain why suppression orders are necessary to protect the safety of the Plaintiff, the further Affidavit addressed some of the challenges which the Plaintiff has encountered in dealing with the sexual abuse alleged in these proceedings. The solicitor says:

“7. I say that disclosing [the Plaintiff’s] identity, and thereby connecting him in the minds of the public, his family and acquaintances to the abuse he suffered, will likely cause him to think a lot more about his abuse and will likely cause him to have to talk about such matters, thereby causing psychiatric harm to the plaintiff.

8. I believe based on my communications with and knowledge of the plaintiff that he does not want anyone he has not personally told to know about the subject abuse. I believe based on my communication with the plaintiff and review of his file that were his abuse became known to people in his family or social circles that discussion of or remark upon such events may occur, triggering very significant distress and embarrassment. Based upon my experience running historical abuse cases, essentially exclusively for the last 4 years, witnesses in historical sexual abuse cases who are also victims of abuse are in the same position as people such as the plaintiff, in the sense that if their abuse became known publicly that would likely cause him psychiatric harm.”

39. The solicitor’s belief about the Plaintiff includes the following specific matters:

1. thinking a lot more about his abuse will cause him psychiatric harm;

2. having to talk about his abuse will cause him psychiatric harm;

3. he does not want anyone to know who he has not told personally; and

4. discussion of, or remark upon, his abuse, at least with family and friends, triggers very significant distress and embarrassment.

40. The specific matters referred to above are directed to the Plaintiff’s personal position. The solicitor has a perception of the Plaintiff’s mental health, which is the subject of expert medical evidence annexed to the solicitor’s Affidavit. However, it is doubtful that the Plaintiff’s position is unique. Concurrently with these applications, the Court heard some applications by a different plaintiff against the same Defendants, in support of which there was evidence that the other plaintiff is at risk of mental harm similar to that described above. Indeed, the Plaintiff’s solicitor’s own experience is that other victims of child sexual abuse “are in the same position” as the Plaintiff.

41. The former students whose names may be revealed by the counselling records will now be adults. If they were immediate peers of the Plaintiff they will be about 47 years old. Apart from attending the same school as the Plaintiff, it is not known what life experience any of them has had, including experiences before going to school, after going to school, outside of school and within their families. It is not known what life experiences any of their children may have had and how any relevant experiences may have affected any of the former students. Nothing is known about the current mental health of any of the former students. All that is known is that they are people who received counselling when they were at school.

42. These are matters which ought to inform the Court’s approach to granting access to the counselling records and the terms upon which it is granted.

43. I do not think it is controversial that raising past sexual abuse with a person who may be a victim is a situation which needs to be approached with appropriate care. On the evidence currently before the Court, I have a reservation about an approach being made on an assumption that the former student is likely to find it a positive experience and that the potential for harm is remote. I do not suggest that the Plaintiff’s solicitor would not act carefully when making cold calls, but his objective will be to obtain evidence to support the Plaintiff’s case which may cloud his perception of the impact on the former student being approached and his judgment about how to cater for the former student’s interests.

44. On the other hand, the concerns raised by the Plaintiff about having to obtain leave from the Court are overstated.

45. Realistically, the likely consequence of Storer Orders being made is that the Plaintiff’s legal advisers will be able to organise the preparation of the Plaintiff’s case so that only a single application for further leave will be necessary. The nature and content of the application and the leave sought will depend upon the information revealed by the counselling records, the Plaintiff’s current instructions and the particulars of the issues in the case, both factual and legal. It is likely to be possible to make the application in a way which does not require the Plaintiff to surrender any forensic advantage he would otherwise have. If it subsequently becomes apparent to the Plaintiff that he requires further or different leave for one reason or another, then a further application can be made.

46. Frequent applications having to be made on a piecemeal basis for each former student seems improbable. The term in (c) will apply to the use or further disclosure of information derived from the counselling records which the Court has ordered the Defendants to produce. If, pursuant to leave from the Court, former students are contacted and they provide to the Plaintiff’s solicitor information about themselves or other former students, then that further information will not be subject to the term in (c). Only the information derived from the counselling records needs to be subject to further leave from the Court.

47. The Plaintiff’s solicitor stated in his Affidavit that he also acts for the plaintiff in the Storer case. The Storer Orders made in that case were made on 11 August 2023. There is no evidence that they have proved unworkable or prejudicial or burdensome for the Storer plaintiff, or indeed for the Court.

48. In this case, I am not persuaded that it is appropriate to permit information obtained from the counselling records to be used or further disclosed without further leave from the Court. I will make orders for the Plaintiff to have access to the unredacted counselling records on the terms in paragraphs (a), (b) and (c) of the Order set out above.

49. The Defendants seek the further term set out in paragraph (d). In my view such a term is premature in the circumstances of this case. As the Plaintiff submitted, the question of confidentiality and how it is to be addressed at the trial is a matter best left for the trial judge. At the very least, it should be addressed closer to the trial date when the parties will have a better understanding of the nature and scope of any material which may need to be kept confidential.

Suppression and non-publication orders for former students named in the counselling records

50. For the same reason, it is not appropriate at this stage to make any orders under the Court Suppression and Non-publication Orders Act which relate to the identity of, and other details about, any former student named in the counselling records. As set out below, any such orders would be a detraction from the important principle of open justice. They could only be made if it was necessary for one of the grounds specified in s 8 of that statute. At this early stage in the preparation of the case, not enough is known to permit the Court to assess whether any such orders are necessary.

51. That is not to say that such orders may not become necessary in the future. Any future application for suppression orders for any former student may be considered on the evidence available at the time the application is made.

Leave nunc pro tunc

52. In October 2023 the First Defendant answered the subpoenas addressed to it by producing to the Court two bundles of documents, one of which was redacted and the other of which was unredacted. The material before the Court suggests that the Court’s system for the electronic production of documents requires documents to be marked “privileged” in order to avoid an order for general access being made.

53. The First Defendant cannot be criticised for taking the approach it took in October 2023. The bundle of unredacted documents constituted a complete answer to the subpoena in accordance with the First Defendant’s obligations. The fact that the same documents were also produced in a redacted form does not detract from the First Defendant’s compliance with its obligations.

54. The dispute between the parties arose because the Plaintiff did not realise that unredacted documents had also been produced. The Plaintiff is not to be criticised for that because the unredacted documents were marked “privileged” which prevented the Plaintiff from inspecting them. When the Plaintiff objected to the redactions, the First Defendant readily informed the Plaintiff that unredacted documents had also been produced. It would have been better if the First Defendant have volunteered that information at the outset. However, as between the Plaintiff and the First Defendant it is unlikely to have made any procedural difference because the events in May 2024 suggest that an application to the Court would have been required in any event given the parties’ inability to agree on the terms upon which access should be ordered. Indeed, even if the parties had agreed to Storer Orders being made, a hearing may still have been necessary because the terms are imposed in the Court’s inherent jurisdiction.

55. The Second Defendant took a different approach which was to answer the subpoena by producing redacted documents only. The Plaintiff submits that by so doing, in October 2023 the Second Defendant failed to comply with the subpoena. I agree: Lewis v Lewis (2021) 105 NSWLR 487; [2021] NSWCA 168 at 511, [97]-[99].

56. The Second Defendant has now produced further copies of the documents which are unredacted. That production cures the previous failure to comply. As I understand it, apart from the six pages of counselling records these documents are in packet S-14.

57. By its Notice of Motion filed on 28 June 2024 the Second Defendant seeks leave nunc pro tunc “to maintain the redactions to the documents to be produced in answer to the subpoena as identified in the Affidavit of Jacqueline Peta Waugh sworn on 28 June 2024”. In view of the further production referred to in the preceding paragraph and the order for general access to be made in respect of those documents, there does not appear to be any utility in such a grant of leave. I will not therefore grant leave, but the Second Defendant is at liberty to make a further application should it become necessary.

Suppression and non-publication orders for the Plaintiff

58. The Plaintiff seeks an order under s 7 of the Court Suppression and Non-publication Orders Act and related orders for the purpose of protecting his identity in these proceedings. A form of orders has been provided to the Court.

59. A suppression order, or a non-disclosure order, necessarily detracts from the principle of open justice, which is one of the most fundamental aspects of the system of justice in Australia. In John Fairfax Publications Pty Limited v District Court of New South Wales (2004) 61 NSWLR 344 at 352-353; [2004] NSWCA 324 at [17]-[22], Spigelman CJ, with whom Handley JA and M W Campbell AJA agreed, said:

“[17] As often happens in a context involving fundamental principle, two such principles are in conflict and a judgment must be made as to which principle is to prevail in the circumstances. The principle of open justice and the principle of a fair trial each inform and energise many areas of the law, as I have sought to show in extra-judicial addresses. See, J J Spigelman, “Seen to be done: the principle of open justice” (2000) 74 Australian Law Journal 290, 378 and J J Spigelman, “The truth can cost too much: the principle of a fair trial” (2004) 78 Australian Law Journal 29.)

[18] It is well established that the principle of open justice is one of the most fundamental aspects of the system of justice in Australia. The conduct of proceedings in public including, relevantly, the taking of verdicts after a criminal trial, is an essential quality of an Australian court of justice. There is no inherent power of the Court to exclude the public. (See Scott v Scott [1913] AC 417 at 473; Dickason v Dickason (1913) 17 CLR 50 at 51; Daubney v Cooper (1829) 10 B & C 237109 ER 438 at 440; Russell v Russell (1976) 134 CLR 495 especially at 507 and 520-521, 532.) The taking of a verdict is something which occurs in the ordinary course of criminal proceedings. (See, for example Coulter v The Queen (1988) 164 CLR 350 at 356, 357 and cf 359-360, 362.)

[19] It is also well established that the exceptions to the principle of open justice are few and strictly defined. (See, for example, McPherson v McPherson [1936] AC 177 at 200; R v Tate (1979) 46 FLR 386 at 402.) It is now accepted that the courts will not add to the list of exceptions but, of course, Parliament can do so, subject to any Constitutional constraints. (See, for example, Dickason; Russell; John Fairfax Publications Pty Ltd v Attorney General (NSW) (2000) 158 FLR 81 at 93 [70]-[73].)

[20] The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public. Nothing should be done to discourage fair and accurate reporting of proceedings. (See, for example, Attorney General v Leveller Magazine Limited [1979] AC 440 at 450.)

[21] From time to time the courts do make orders that some aspect or aspects of court proceedings not be the subject of publication. Any such order must, in the light of the principle of open justice, be regarded as exceptional. (See, for example, Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 50D-E and 54G.)

[22] The principle of a fair trial has been characterised in numerous High Court judgments in the most forceful of terms. It has been described as “the central thesis of the administration of criminal justice”: McKinney v The Queen (1991) 171 CLR 468 at 478; as “the central prescript of our criminal law”: Jago; as a “fundamental element” or a “fundamental prescript”: Dietrich v The Queen (1992) 177 CLR 292 at 299, 326; and as an overriding requirement: Dietrich . It is not a new principle. As Isaacs J put it in 1923 with reference to “\the elementary right of every accused person to a fair and impartial trial: “Every conviction set aside, every new criminal trial ordered, are mere exemplifications of this fundamental principle”: R v MacFarlane; Ex parte O’Flanaghan & O’Kelly (1932) 32 CLR 518 at 541-542.”

60. A strictly defined exception to the principle of open justice has been established by Parliament in the Court Suppression and Non-publication Orders Act, which relevantly provides:

6 Safeguarding public interest in open justice

In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

7 Power to make orders

A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of—

(a) information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or

(b) information that comprises evidence, or information about evidence, given in proceedings before the court.

8 Grounds for making an order

(1) A court may make a suppression order or non-publication order on one or more of the following grounds—

(a) the order is necessary to prevent prejudice to the proper administration of justice,

(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c) the order is necessary to protect the safety of any person,

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including sexual touching or a sexual act within the meaning of Division 10 of Part 3 of the Crimes Act 1900),

(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.

(3) Despite subsection (1) (d), a court may make a suppression order or non-publication order on the grounds that the order is necessary to avoid causing undue distress or embarrassment to a defendant in criminal proceedings involving an offence of a sexual nature only if there are exceptional circumstances.

61. Suppression and non-publication order will, in this case, detract from the principle of open justice. However, the orders sought by the Plaintiff are for the specific purpose of protecting the identity of the Plaintiff. The terms of the orders which are sought are limited to achieving that specific purpose and do not otherwise interfere with these proceedings being conducted in accordance with the principle of open justice. The orders will not interfere with the public’s right to scrutinise the conduct of the Court, nor will they interfere with the implementation of justice: R v BB(No 6) [2021] NSWSC 1518 at [18] (Rothman J). The detraction from the principle of open justice which will result from such orders will be minimal.

62. Under s 7 of the statute, the power of the Court to make a suppression order is limited to an order made on the grounds specified in s 8. The Plaintiff relies on three grounds, namely: (a) the order is necessary to prevent prejudice to the proper administration of justice, (c) the order is necessary to protect the safety of any person, and (e) it is otherwise necessary in the public interest for the order to be made and that public interest necessarily outweighs the public interest in open justice.

63. I’m satisfied that ground (a) is made out having regard to the nature of the case and the evidence which has been adduced about the Plaintiff’s concerns about his identity being revealed. It is not necessary to set out the details of these concerns in the reasons. The evidence which demonstrates the concerns is contained in the Affidavit of the Plaintiff’s solicitor affirmed on 3 July 2024, including the medical report attached to that Affidavit. The proper administration of justice requires that there be a practical and accessible procedure to permit a person such as the Plaintiff to bring a case of this nature in a way that caters for concerns such as those which the Plaintiff has.

64. In support of ground (c), the Plaintiff has produced evidence about his medical condition, specifically his mental health. Having regard to the nature of the case, and that medical evidence, I am satisfied that ground (c) is made out in the circumstances of this case.

65. In view of my conclusions about ground (a) and ground (c) it is not necessary for me to decide whether suppression and non-publication orders should also be made on the basis of ground (e).

66. The terms of the orders sought by the Plaintiff are appropriate having regard to ground (a) and ground (c).

67. For these reasons, I will make orders under s 7(a) of the Court Suppression and Non-publication Orders Act, moulded to suppress the identity of the Plaintiff and not otherwise interfere with the principle of open justice.

Costs

68. Both sides submitted that I ought to order the other side to pay his or their costs of these applications. Both sides referred to the history of the proceedings since documents were produced in October 2023 and identified what they said was fault on the part of the other side. Some of those submissions have more merit than others.

69. Even if each side had acted in the way which the other side said was required of it, it would have been necessary for the Court to hear and determine an application about access to the six pages of the counselling records. Further, the orders which the Plaintiff sought under the Court Suppression and Non-publication Orders Act required a hearing before the Court even though the Defendants did not oppose those orders. Such orders affect the administration of justice and must therefore be considered and made in open court.

70. Both sides submitted that any hearing before the Court might have been shorter or cheaper but for the conduct of the other side. However, at the hearing on 9 July 2024 counsel for each of the parties conducted the hearing efficiently and I consider that a shorter hearing would have been a marginal prospect at best.

71. In those circumstances I will order that each party bear its own costs of the Plaintiff’s Notice of Motion dated 27 May 2024, each of the Defendants’ Notices of Motion dated 28 June 2024 and the hearing on 9 July 2024.

Orders

72. The Orders to be made to dispose of these applications are set out in the following paragraph. For the avoidance of doubt, the subpoena packets referred to in Order 2 are the packets which contain all unredacted documents provided by either Defendant other than the six pages of counselling records. The subpoena packets referred to in Order 3 are the packets which contain the six pages of unredacted counselling records. Each party ought immediately to check the references to the packet numbers. If the references to the packet numbers are incorrect, any party has liberty to apply by email to my chambers to have the Orders varied under the slip rule.

73. I make the following orders:

1. The Plaintiff’s Notice of Motion dated 27 May 2024 be dismissed.

2. Pursuant to UCPR 33.8, general access be given to subpoena packets:

1. S-9 produced by the First Defendant; and

2. S-14 produced by the Second Defendant.

3. Pursuant to UCPR 33.4(1) and 33.8 and the inherent jurisdiction of the Court, order that:

1. access to the documents produced in subpoena packets S-12 and S-13 be limited to the solicitors and counsel who are retained to act for each of the parties to the proceeding;

2. with respect to such access by solicitors and counsel, any inspection of the documents in subpoena packets S-12 and S-13 be limited to the parties, instructed solicitor and counsel; and

3. each party, solicitor and counsel will not use or further disclose the identifying details, being the names, addresses, telephone number or other confidential details of any person identified in the documents in subpoena packets S-12 and S-13, without leave of the Court first being granted.

4. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), and on the grounds referred to in subs 8(1)(a) and (c), the disclosure by publication or otherwise of any information as to the name and identity of the Plaintiff, except as may be necessary for the proper conduct of these proceedings, is prohibited.

5. The Plaintiff in these proceedings be known as “WJT”, be described in all pleadings and other document filed or served in the proceedings as "WJT" and, except as may be necessary for the proper conduct of the proceedings, be only referred to as "WJT".

6. The name of the proceedings be changed so that the proceedings be referred to as "WJT v Trustees of the Marist Brothers & Trustees of the Roman Catholic Church for the Diocese of Parramatta".

7. There be no publication of the name of the Plaintiff or of any matter that would identify him.

8. Orders 4 to 7 above are to apply throughout the Commonwealth of Australia pursuant to s 11 of the Court Suppression and Non-publication Orders Act 2010 (NSW).

9. Orders 4 to 8 above are to apply until further order of the Court pursuant to s 12 of the Court Suppression and Non-publication Orders Act 2010 (NSW).

10. Each party bear its own costs of the Plaintiff’s Notice of Motion dated 27 May 2024 and each of the Defendants’ Notices of Motion dated 28 June 2024 and the hearing on 9 July 2024.

74. The Court notes that Order 3 above is not intended to prevent solicitors and counsel from seeking instructions from their clients with respect to the content of the documents or, subject to Order 3, the use of the documents for the purposes of the proceedings only.

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Decision last updated: 08 August 2024